Trial court erred in quashing search warrant where defendant failed to make a substantial preliminary showing that material information in the affidavit in support of the warrant was deliberately or recklessly omitted. Lee was convicted of assault with a deadly weapon (Pen. Code, § 245); a great bodily injury enhancement was found true (Pen. Code, § 12022.7). He was sentenced to seven years in prison. Prior to trial, Lee filed a motion to quash the search warrant for his home (“Franks” hearing, see Franks v. Delaware (1978) 438 U.S. 154)). During the search, police learned the name of a witness to the offense and Lee sought to suppress the witness’ testimony as fruit of an illegal search. While the trial court quashed the warrant, it denied Lee’s motion to suppress evidence, finding the prosecution was not precluded from using a witness who they discovered by talking to someone at Lee’s house. Lee appealed. Held: Affirmed. Lee claimed the trial court was required to suppress the evidence provided by prosecution witness David Lee, because it had quashed the search warrant and police learned of the witness during the search. However, Lee failed to make a “substantial preliminary showing” at the Franks hearing that information in the affidavit supporting the warrant was deliberately or recklessly omitted, or that any omitted data was material to a probable cause determination. Further, the information was not stale. The affiant declared that in 1995 Lee purchased guns and was subsequently convicted of a felony, which precluded him from possessing guns. The guns were still registered to Lee; there was no evidence he disposed of the guns after his conviction; and the home searched was the address he gave to officers and listed with the DMV as his residence. Contrary to the trial court’s finding, there was probable cause to issue the warrant and no proper basis for holding a Franks hearing in the first place.

The trial court did not err in refusing to exclude the victim’s attorney from attending Lee’s trial. The victim filed a civil suit against Lee prior to his criminal trial. Lee asked to exclude the victim’s attorney from trial because the two might share information the attorney learned from the proceedings and thereby compromise the integrity of the trial. Lee also claimed the victim’s attorney might be a potential witness. There was no error. The accused as well as the public have a right to an open trial. The trial court may exclude witnesses (Evid. Code, § 777) and victims under certain circumstances (Pen. Code, § 1102.6, subds. (b) & (c)). However, Lee failed to show a “substantial probability” that the presence of the victim’s attorney would prejudice his right to a fair trial.